June 5, 2008

The Fifth Circuit's opinion in US v. Rowan, No. 05-30536 (5th Cir. June 4, 2008) (available here), though very brief, shows the impact of Gall on how circuits are doing reasonableness review of federal sentences. Here is an effective report on the ruling from a helpful reader:

The defendant pled guilty to possession of child pornography. His Guideline range was 46-57 months. He received five years' supervised release. The Fifth Circuit panel had previously held in Rowan that his sentence was substantively unreasonable based on an earlier Fifth Circuit case that held that 5 years probation for child pornography was too short. Rowan was then remanded in light of Gall. On remand, this court, in a very short opinion, affirmed. When two conservative judges (Garza and Jolly) can affirm a sentence of supervised released for child pornography (a crime a lot of conservatives feel is basically akin to child rape), I think that's a pretty good example of how Gall has changed things. Indeed, I think what is so remarkable about the opinion is the little analysis the court provided. This wasn't even a close case, apparently. Compare this case with United States v. Duhon, 440 F.3d 711 (5th Cir. 2006), where this court heavily scrutinized a probationary sentence for a child pornographer pre-Gall. Note that Judge Garza was on the panel in Duhon and wrote the opinion in the Rowan case.

Comments

Something is not being portrayed accurately because the sentence imposed is illegal on its face--Supervised release can only be imposed following a period of confinement. Further, to approve this sentence without analysis or comment causes one to wonder whether meaningful appellate review exists post Gall.

Posted by: | Jun 5, 2008 1:40:57 PM

No, that's the same issue that arose in the Scooter Libby case, and as I recall the court asked for briefing on the issue and then allowed the supervised release to remain even though Libby's period of confinement was vanquished by Bush.

The opinion represents quite the contrast with Pugh from the 11th Circuit!

http://www.ca11.uscourts.gov/opinions/ops/200710183.pdf

Posted by: Lindsay | Jun 5, 2008 5:27:20 PM

We're back to luck-of-the-draw sentencing, ladies and gentlemen. Only worse, because now it's not merely the luck-of-the-draw for your district judge, it's luck-of-the-draw for your appellate court too.

At least the guidelines in their original form made a sincere effort to achieve rough equality of treatment. That is now out the window.

This might be someone's idea of justice. It sure isn't mine.

Posted by: Bill Otis | Jun 5, 2008 8:40:10 PM

Bill put it back in the hands of the judges, take sentencing out of the hands of the USAO. Come on our justice system should not revolve around an excel spreadsheet calculating points. Let Judges decide. Why do all the people pro USAO all the people that try to put the fear of god into people taking about how crime is running wild. Why are all those people afraid to let a federal judge decide a sentence. Why????? Sometimes you have to give a second chance if the person stumbles again and comes back into the system you hit him hard. Probation is still a sentence. It was meant to be a sentence.

Now I dont know much about this case child porn i dont know if I would put that into a category on non violent. In this case sometype of a sentence might have been the way to go.

With that being said every non violent offender does not have to go to jail.

Posted by: | Jun 5, 2008 9:35:36 PM

Do you agree that we're back to luck-of-the-draw sentencing or not?

If we are, do you really think that's a good idea?

If we're not, I need to know what is it exactly that obliges one judge to impose a sentence anything like the judge in the next courtroom would impose for the same offense.

Just to say, "Let the judge decide" does nothing to address the problem of irrational disparity and, to the contrary, encourages it. I don't know what that is, but equal justice it assuredly is not.

Posted by: Bill Otis | Jun 5, 2008 11:35:42 PM

Bill, not everyone is created equal. ever hear that one?
everyone has there own circumstances and should be judged that way

Posted by: | Jun 6, 2008 6:48:49 AM

That sentence is an abomination and should have been vacated on substantive reasoableness review.

Posted by: Da Man | Jun 6, 2008 12:12:22 PM

"Do you agree that we're back to luck-of-the-draw sentencing or not?"

Absolutely not. That's an extreme reaction. You've been out of practice for a few years, I assume, so are only looing at the outlier cases that are discussed on blogs. For the most part, except in the atypical case, the guidelines are being followed. I think the guidelines are a joke that should be given minimal consideration b/c most of the guidelines are not based on empirical research or rigorous thinking but rather are politically motivated. (See, e.g., the Feeney Amendment.) But the Congress, in s 3553(a), mandates that the guidelines be given the same consideration as the other s 3553(a) factors. And, district courts, at least where I practice, give the guidelines at least equal consideration, and most of the time give them more than equal consideration. So your statement, "luck of the draw sentencing," is way off base, at least in my experience and in the experience of every practitioner, defense or prosecutor, with whom I have spoken.

Posted by: John | Jun 6, 2008 1:59:48 PM

6:48:49,

"Bill, not everyone is created equal. ever hear that one?"

The way I heard it was "All men are created equal." That is not really correct, of course, but all men should stand equal before the law.

"...everyone has there own circumstances and should be judged that way."

Then I trust you'll have no objection when a hardline judge, freed from any real restraint under the guidelines, maxes you out on a marijuana charge that usually draws a sentence half as long. I mean, the judge could say that you have a "bad attitude," and since "everyone is to be judged on his own circumstances," you'll have no grounds for complaint.

Posted by: Bill Otis | Jun 7, 2008 2:48:27 PM

John:

"You've been out of practice for a few years, I assume..."

Assume as it may please you.

"...so are only looing at the outlier cases that are discussed on blogs."

"For the most part, except in the atypical case, the guidelines are being followed."

They are being followed 61% of the time nationwide, with roughly 37.5% of defendants receiving downward departures and 1.5% receiving upward departures. There are considerable variations in these figures from district to district.

"I think the guidelines are a joke that should be given minimal consideration b/c most of the guidelines are not based on empirical research or rigorous thinking but rather are politically motivated. (See, e.g., the Feeney Amendment.)"

The staff of the Sentencing Commission does not share your views, and neither do the Commissioners, either past or present. Of course if you doubt that, I'm sure you'll be able to come up with a quotation from at least one of the Commissioners or staff members to the effect: "Oh, no, we don't do empirical research, we're just a bunch of closet politicians."

In fact, the guidelines were crafted based on extensive empirical research into typical sentencing practice in the years before the Sentencing Reform Act, much less the Feeney Amendment, was adopted.

"And, district courts, at least where I practice, give the guidelines at least equal consideration, and MOST OF THE TIME give them more than equal consideration. So your statement, 'luck of the draw sentencing,' is way off base..." (caps supplied by me).

Well, John, if the judges are following the guidelines "most of the time," that means they AREN'T following them THE REST OF THE TIME, and all depending on which judge is sort of following them and which judge sort of isn't, luck of the draw sentencing is therefore exactly what you've just admitted.

Posted by: Bill Otis | Jun 8, 2008 2:05:40 PM

Bill, "extensive empirical research into typical sentencing practice in the years before the Sentencing Reform Act" is not the same as empirical research identifying what sentence would best reduces crime or promote justice. You're arguing that the Sentencing Commisson's research was merely about the supposedly arbitrary and disparate sentences previously issued by judges that you now criticize, so your argument seems circular to me. If the research on which the guidelines were based focused on what sentence would reduce crime and best protect victims, that'd be a different matter.

I don't track federal courts closely, but from reading Doug's coverage the past few years, to claim the guidelines have no political basis seems like a weak position, frequently contradicted by events.

John's claim was that the guidelines were not based on empirical research. That claim is incorrect, and I was justified in pointing that out.

They were based on research into typical sentencing practice in the years before the SRA. They were then modeled after that practice. The reason for this was not that Congress or the Sentencing Commission was stupid or disinterested in having sentences that will reduce crime. The reason was that district judges were feeling none too happy about this big new development that would constrain their power, and it was felt wise to ease the pain for them -- as well as to remain faithful to historical practice -- by having the guidelines fairly closely approximate the sentences these judges, hardline and softline, were used to imposing.

You pretty directly imply that the Commission should have been researching what sentences "promote justice." Given your leanings, I have to suspect that this is code meaning roughly: "They should have found a bunch of liberal law professors from the Ivy League to do some pre-fab 'research' and tell us that, by God and by golly, sentences are too long, and what's needed is to Give Peace A Chance (or whatever the penological equivalent is).

Might I be onto something there?

Posted by: Bill Otis | Jun 9, 2008 5:29:27 PM

You are absolutley wrong, Bill, to claim that the guidelines are based on empirical research. Read Kimbrough, for G-D's sake. The SUPREME COURT recognized that the crack guidelines are NOT based on any empirical research and gave the greenlight to disregard other guidelines not based on empirical research, e.g. fast track, child porn, etc.

And what does "empirical research" in the guideline context mean? It means that a few research associates at the Commission looked at past PSRs. That's the extent of the so-called "empirical research."

And ALL judges follow the guidelines most of the time. SOME judges follow the guidelines ALL of the time. The only "luck of the draw" is whether a defendant deserving of a below guideline sentence is lucky enough to get a judge who is not wedded to the guidelines, as you seem to be.

Posted by: John | Jun 10, 2008 5:10:15 PM

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